immanuel shikunga versus the state

8/14/2019 IMMANUEL SHIKUNGA versus The State

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Coram: Mahomed CJ, et Dumbutshena, A.J.A , et Hannah A .J.A.

H eard on: 1 9 9 6 / 0 4 / 2 3 and 24

Delivered on: 1 9 9 7 / 0 8 / 2 0

JUDGMENT

Mahomed CJ

Before Strydom JP, in the court a quo, two persons appeared on a charge of murdering one IanScheepers ("the deceased") and a second charge of robbery of the deceased. The first accused

In the matter between

IMMANUEL SHIKUNGA FIRST APPELLANTand

THE STATE FIRST RESPONDENT

IN THE SUPREME COURT OF NAMIBIA v

Case No. SA 6/95


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2was Asser Singanda whom I shall continue to refer to as "thefirstaccused". The second accusedwas Immanuel Shikunga, and I shall continue to refer to him as the "second accused".

At the conclusion of a long trial the first accused was acquitted on the count of murder butconvicted on the count of robbery and sentenced to 12 years imprisonm ent. There was an appealby the State, to this court, against the acquittal of the first accused on the m urder count. I am inrespectful agreement with the judgement given by my brother Hannah upholding the appeal of theState against the acquittal of the first accused, and the order which he has proposed arisingtherefrom.

The second accused was convicted on both counts by Strydom JP . On the count of murder he w assentenced to life imprisonment and on the robbery count he was sentenced to 16 yearsimprisonment. He appeals against both these convictions and the se ntenc es. This judgment dealswith the case sought to be made on behalf of the second accused in this appeal.

The material facts in support of the case sought to be made out by the State were indeed commoncause at the trial. The second accused had been working for the deceased . That employment w asterminated on 5 January 1993. Both accused had entered the house of the deceased on 30 July1993. The second accused inflicted a number of stab wou nds on the deceased in conseque nceof which the deceased died. A post-mortem exam ination showed that the deceased had beenstabbed 23 times. Both of the accused thereafter caused various go od s belonging to th e deceasedto be loaded o nto the back o f a van which also belonged to the deceased. That van was laterabandoned outside Omaruru and when it was discovered by the police blood stains were foundin the drive r's com partm ent. The justification offered by the second accused for his conduct in


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3killing the deceased was that he had acted in self-defence.

His evidence was that he had visited the house of the deceased simply to collect certain moneyswhich were ow ing to him. The d eceased had, ho wev er, acted violently by attacking him and hehad to stab the deceased to defend himself. He did not dispute taking the goods belonging to thedeceased, but his explanation was that this was d one in com pensation of the claim which he hadagainst the deceased.

In my view the evidence and the objective circumstances do not support the case of the secondaccused based on self-defence.(S vDe Oliveira 1993 (2) SACR 59 (A) at 63 h-i; S v Motleleni1976 (1) SA 403 (A) at 406C; SvNtuli 1975 (1) SA 429 (A) at 436D-E ; S v Goliath, 1972 (3)SA 1 (A) at 11C; Burchell and Hunt, SA Criminal Law and Procedure, vol. 1 at 278 ; Burchelland Milton Principles of C riminal Law 1st Ed, 1991 at 117.)..

In the first place the second accused was a robust young man who was only 23 years old , thedeceased was much older. In a physical contest be tween the two the deceased would have beenat a disadvantage. Second: on the version given by the second accused the deceased used his fistsin attacking the accused. A knife which the deceased still had in his hand when he was interru ptedin his dinner wa s never used by the deceased at all, it fell from the hand of the deceased duringthe scuffle and was used by the second accused to stab and kill the deceased. In the third placeit was the second accused who had the advantage of surprise, not the deceased. The secondaccused wa s not exp ected by the deceased at all. Fourthly, the second accused was not alonewhen the confrontation between him and the deceased developed. Although there was a disputeas to precisely what role the first accused played, what is clear is that he was always in a position


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4at least to assist the second accused in combatting any aggression by the deceased. In the fifthplace, the quantity of stab wounds inflicted on the deceased and the viciousness of the attack onhim is inconsistent with just a defensive measure undertake n by an accused person spontaneouslyin a state of self-defence. Sixthly, the conduc t of the second accused after the deceased wa s leftlying in blood on the floor also appears to be inconsistent with the defence. The fact that thesecond accused did not seek to assist the deceased or to report what had happened to the policeor any other stranger might perhaps be explicable on the basis that he and his companion panickedand fled, but was is not easy to explain is why they should proceed systematically to load thebelongings of the deceased onto a van and then attempt to sell a part of what was stolen tosomebody else. Seventhly, the second accused also pointed ou t certain spo ts which we re at leastconsistent with the case sought to be made against him.

Although the State case included reliance on a p urpo rted confession made by the second accusedpursuant to the provisions of s 217 of Act 51 of 1977, none of the seven circumstances which Ihave referred to are in any way dependent upon the evidence contained in the purportedconfession. They are all facts or circumstances which emerge from evidence aliunde, from factsand inferences properly drawn from the evidence of other witnesses and from the explanationoffered on behalf of the second accused in explanation of his plea.

In the circumstances, therefore, I find that the State has discharged its onus of proving beyonda reasonable doubt that the second accused was guilty of the charge of murder.

It was submitted on behalf of the second accused, however, that the appeal should succeedbecause the trial Judge in fact allowed a purp orted confession made by the second accused to be


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5admitted in evidence against him and because in the proceedings to determine the admissibilityof the confession he relied on the provisions of section 217(l)(b )(ii) of Act 51 o f 1977 w hich hadthe effect of burdening the accused with the onus of proving that a confession made to amagistrate and reduced in writing was not freely and voluntarily made "if it appears fr om thedocument in which the confession is contained that the confession was made freely andvoluntarily".

It was submitted that the provisions of section 217(l)(b)(ii) were unconstitutional and that thetrial Judge erred in allowing the disputed confession relied upon by the State to be admitted inevidence against the second accused.

These submissions raise a number of issues.

Thefirst ssue is whether s 217(l) (b)(ii) is indeed unconstitutional in terms of the Constitution ofNamibia. The second issue is whether if that section is indeed unconstitutional, this can be ofassistance to the second accused to escape his conviction, in the circumstances of the presentcase.

The constitutionality- of s 217(b)(ii)Strydom JP held that he was bound by the decision of a full bench consisting of two judges in thecase of S v Titus 1995 (3) BCLR 263 (Nm.H) in which it was held that the impugned section wasnot inconsistent with the Constitution.

. It is unnecessary for us to consider whether the learned Judge was bound by the decision o f the


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6High Court in the case of Titus. It is common cause that the Supreme Court is not so bound. Therelevant question is whether the conclusion arrived at in the case of Titus was indeed correct.

Section 217 (l)(b)(ii) of Act 51 of 1977 provides that:"(1) Evidence of any confession made by any person in relation to the commission of any offence

shall, if such confession is proved to have been freely and voluntarily made by such personin his sound and sober senses and without having been unduly influenced thereto, beadmissible in evidence against such person at criminal p roceedings relating to such offence:Provided -(a)(b) that where the confession is made to a magistrate and reduced to writing by him,

the confession shall, upon the mere production thereof at the proceedings inquestion -(i)(ii) be presumed, unless the contrary is proved, to have been freely and

voluntarily made by such person in his sound and sober senses andwitho ut having been unduly influenced thereto, if it appears from thedocument in which the confession is contained that the confession wasmade freely and voluntarily by such person in his sound and sobersenses and without having been unduly influenced thereto."

The effect of this sec tion is clear: even if the prosecution has failed to p rove that a writtenconfession made by an accused person was made freely and voluntarily in his or her sound andsober senses and without being unduly influenced thereto, this is presum ed to be the truth (as lon gas this appears from the document containing the confession) unless the contrary is proved by theaccused.


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7In a case where the only material evidence against an accused person is a written confession madeto a magistrate, the section would therefore permit a conviction based on that confession, evenif the prosecution has been unable to establish that that confession was freely and voluntarilymad e. A court which had reasonable doubt as to whether the confession was freely andvoluntarily made, and therefore whether the guilt of the accused was established beyondreasonable doubt, would in the circumstances nevertheless be permitted to find him or her guilty.The accused, could in these circumstances, be held to be guilty of an offence, in respect of whichguilt has not been established beyond a reasonable doubt.

The question which accordingly arises is whether a section which permits such a result isConstitutionally permissible.

Relevant in this regard are the provisions of Articles 7 and 12 of the Constitution of Namibia.

Article 7 provides that no person shall be deprived of personal liberty except according toprocedures established by law.

.Article 12(l)(a) makes it clear that in the determination of any criminal charges against them, allpersons are entitled to a fair hearing by an independent, impartial and competent Court orTribunal established by law.

.Article 12(l)(d) directs that all persons charged with an offence shall be presumed innocent untilproven guilty according to law.


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8Anicle 12(l)(f) protects an accused personfromany compulsion to give evidence against himselfor herself.

In my view Section 217(l)(b)(ii) of Act 51 of 1977 offends these provisions of the Constitutionbecause it permits a court, in certain circumstances, to convict an accused person whose guilt hasnot been established b eyond reasonable doub t. A person convicted of an offence in thesecircumstances cannot be said to have had a "fair trial" in which he or she was "presumed innocentuntil proven guilty".

At common law, a confession made by an accused person is not admissible against him or herunless it is established that it wasfreelyand voluntarily made, and that he or she was in sound andsober senses and not unduly influenced the reto . This is a crucial requirem ent in a fair system ofjustice. It goes to the h eart of the rights expressly protected by Article 12 of the Co nstitution.A statute which invades that right subverts the very essence of the right to a "fair trial" and theincidents of that righ t articulated in Article 12(l)( a), (d) and (f). Section 21 7(l )(b )(ii) con stitutessuch an invasion. (S v Zuma and others 1995 (2) SA 642 (CC ) at para 33 on page 659).

In the case of S v Titus {supra) the High C ourt relied inter alia on the provisions of section 2 09of Act 51 of H T to com e to a different conclusion. Section 209 simply provides that an accusedcould only be convicted on the basis of a confession if the confess ion was confirmed in a materialrespect or if the offence was proved by evidence other than the confession to have been actuallycommitted. In my view section 209 cannot assist the prosecution to rescue section 21 7(l)(b )(ii).Section 209 does not necessarily require any evidence to support any admission in the confessionto the effect that the relevant offence was committed by the person making the confession. The


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9objection to which I have previously referred remains intact: the only evidence connecting theaccused person with the offence involved could be the confession, and if the prosecution hadfailed t o establish that that confession w as freely and voluntarily made, a conviction of theaccused could result notwithstanding the fact that his or her guilt was not established beyond areasonable doubt. In my view such an accused could not be said to have received a fair hearingwithin the meaning of Article 12 of the Constitution. The accused has the right to require theState to prove his or her guilt beyond a reasonable doubt. The effect of section 217(l)(b)(ii) is

to imperil that right.

It therefore follows that the case of S v Titus (supra) was wrongly decided and should not befollowed.

The consequ ence w hich follows from the invalidity of section 217(l)(b)(ii)During argument, the court raised with counsel for the second accused the issue as to whetheror not the conviction of the second accused could be upheld if there had been a constitutionalirregularity which had been committed during the course of the trial. Counsel for the secondaccused contended that the decision of the trial court to admit the confession pursuant to theprovisions of section 2 17 (l)(b )(ii) was a fatal constitutional irregularity which should vitiate theconviction.

There appears to be a tension between two important considerations of public interest and policyin the resolution of this problem. The first consideration is that accused persons who aremanifestly and demonstrably guilty should not be allowed to escape punishment simply becausesome constitutional irregularity was committed in the course of the proceedings, but in


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10circumstances which showed clearly that the conviction of the accused would inevitably havefollowed even if the co nstitutional irregularity relied upon had not been com mitted. (This isexactly what transpired in the present case. Although the confession was admitted in terms ofsection 217(l)(b)(ii) the trial court was able to correctly justify the conviction of the secondaccused without any reliance on the confession). Th ere is howeve r a competing con sideration ofpublic interest involved. It is this: the public interest in the legal system is not confined to thepunishment of guilty persons, it extends to the importance of insisting that the procedures adoptedin securing such punishments are fair and constitutional and that the public interest is prejudicedwhen they are not.

The courts in various countries have repeatedly addressed themselves to the tensions containedbetween these two different considerations.

South African authority at comm on lawThere is considerable learning about this question in decisions from South African courts whichwere of application to Namibia before its own independence. The appro ach that has been adop tedin assessing the effect of an irregularity in terms of the comm on law is one that asks essentiallywhether or not a failure of justice has resulted from the irregularity or defect. To this effect twocategories in relation to trial irregularities or defects have been delineated (as set out in The Statev A foodie 1961 (4) SA 752 (A) at 756D-F ); a general and an exceptional category:

A. General category:In S v Tuge 1966 (4) SA 565 (A) at 56SB the court articulated the test as follows: the questionis "whether, on the evidence and thefindingsof credibility unaffected by the irregularity or defect,


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11there is proof o f guilt beyond a reasonable doubt." (The Tuge approach was accepted by the ADin S vMnyamana and Another 1990 (1) SACR 137 (A) at 141; and SvMkhise; SvMosia; S vJones; S v Le Roux 1988 (2) SA 868 (A) at 872 A-B).(This formulation of the test is adevelopment of the general test in Moodie (supra) which stated that a failure of justice occurs ifthe court cannot hold that a reasonable trial court would inevitably have convicted if there hadbeen no irregularity.)

B. Exceptional category:In Moodie s case (supra) the court stated that an irregularity can be of such a nature as to amountto a failure of justice per se, and to be so held, without applying the general test. The court inMoodie stated further that whether an irregularity can be classified as falling within the ambit ofthe general or the exceptional test depends on the nature and the degree of the irregularity. Thiswas elaborated on in kfkhise (supra) where the court stated that in order to decide whether anirregularity falls into the exceptional category the enquiry is whether the nature of the irregularityis so fundamental and serious that the proper administration of justice and the dictates of publicpolicy require it to be regarded as fatal to the proceedings in which it occurred.

The consequences of categorising an irregularity as falling within the ambit of the general or theexceptional category is indicated by the varying rem edies. If an irregularity is so fundamental thatit falls into the realm of the exceptional test the court might set aside the conviction withoutreference to the merits, and the accused can be retried. On the other hand where an irregularityfalls into the general category, if'but for' the irregularity there is not proof of guilt beyond areasonable doubt, then the accused is acquitted on the merits and cannot subsequently be re-tried.Similarly if 'but for' the irregularity there is proof of guilt beyond a reasonable doubt then the


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12conviction stands, on the merits.(77*e State vNaidoo 1962 (4) SA 348 (A) at 354D-H.)

Thus, according to this test, when one is confronted with a non-constitutional irregularity ordefect, thefirst ssue that needs to be resolved is whether the irregularity falls into the general orthe exceptional category.

However, it should be noted that this test was defined prior to the constitutional entrenchmentof fundamentalrightsandfreedoms.Does it make any difference where theright n issue has nowbeen articulated in the Bill of Rights forming part of the Constitution? Essentially what wouldhave to be considered is whether the common law test regarding irregularities can be applied toirregularities of a constitutional nature. To this effect the approach taken by other jurisdictionsin dealing with non-constitutional and constitutional irregularities respectively is instructive as itindicates the methods through which courts in foreign jurisdictions have attempted to distinguishbetween irregularities of differing natures. I will, therefore, take a cursory glance at theapproaches adopted in some other jurisdictions as to the effect of constitutional and non-constitutional errors.

CanadaThe Canadian approach to non-constitutional errors is similar to that of our common law. Whereit is found that a trial judge has made an error, the question that is asked is whether there is anyreasonable possibility that if the error had not been committed a judge, or a properly instructedjury, would have acquitted the accused. This was the test applied by Major J in R v Bevan [1993]2 SCR 599. The approach to constitutional errors is demonstrated by the decision of Lamer CJin R v Tran [1994] 2 SCR 951 which was concerned with s 14 of the Canadian Charter which


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13guarantees the right to the assistance of an interpreter. The court held that thatrighthad beeninvaded in that case and proceed ed to enquire into what was the appropriate remedy in terms ofsection 24(1) of the C anadian C harter which in general terms authorised the court to tailor theremedy having regard to the particular circumstances of the case. Lamer CJ distinguished betweenan interpretation which had prejudiced the accused and which was serious and one which was not.It was held that in this case it was prejudicial to the accused and for this reason the appeal wasallowed and a new trial was directed. (See also R v Hardy 6 CRR (2d) 1992, 164 and Porter vThe Queen 17 CRR 19S6, 379.)

United StatesThe United States courts provide some assistance in the distinction between the approach to beapplied to constitutional and non-constitutional errors respectively. In a lecture entitled 'To En-is Human, but Not always Harmless' Judge Edwards distinguishes between the approach appliedto constitutional and non-co nstitutional erro rs. In relation to non-constitutional errors the testthat is applied is that "any erro r, defect, irregularity or variance w hich do es not affect substan tialrights shall be disregarded", (fh 2 at 4). This test was explained, or refined in Kotteakos v UnitedStates 328 US 750 (1945) where (at 764-5) the court stated that essentially what this test entailsis that:

"If, when all is said and done, the conviction is sure that the e rror did not influence thejur y, or had but very slight effect, the verdict and the judgem ent should stand, exceptperhaps where the departure is from a constitutional norm or a specific command ofCongress. But if one cannot say, with fair assurance, after pondering all that happenedwith ou t stripping the erroneou s action from the whole, that the judgemen t was not


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14substantially swayed by the error, it is impossible to conclude that substantial rights werenot affected. The inquiry cannot be merely whether there was enough to support theresult, apart from the phase affected by the error. It is rather, even so, whether the erroritself had substantial influence. If so , or if one is left in grave doubt, the conviction cannotstand."

As Judge Edwards points out, essentially the rule in Kotteakos was that: "errors are to bedisregarded only if the reviewing court can say with fair assurance that the error had nosubstantial effect on the verdict that was rendered"(at 10).

Regarding constitutional errors, as is evident from the above quotation from Kotteakos,

"departures from "constitutional norms" originally received different treatment under theharmless-error rule. Following Kotteakos, law7ers, courts, and commentators appear often tohave accepted that there could be no harmless constitutional error, and numerous Suprem e Courtopinions supported this assumption. An academic stated "The Suprem e Court initially applied thenew federal harmless error rule only to non-co nstitutional errors, and prior to 196 7, the Suprem eCourt routinely reversed con victions u pon a finding of co nstitutional error." (Charles J Ogletree,Jr "Arizona v Fulminate: the Harm of Ap plying Harm less Error to Coerced C onfe ssion s' 105Han-ard Law Review (1 99 1) 152 at 157) Ho wev er, in the 1967 case of Chapman v California3S6 U S IS (1 96 7) , the Suprem e Court for the first time stated that "there may be so m econstitutional errors which in the setting of a particular case are so unimportant and insignificantthat they may ... be deemed harmless, not requiring the automatic reversal of the conviction" (at22). The court also stated that other "constitutional rights [are] so basic to a fair trial that theirinfraction can never be treated as harmless ..."(at 23). For a constitutional error to be harmless,


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the test, per Chapman v California, is whether a court "is able to declare a belief that it washarmless beyond a reasonable doubt" (at 24; and see also Michael T Fisher "Harmless Error,Prosecutorial Misconduct, and Due Process: There's More to Due Process than the Bottom Line"SS Columbia Law Review (\9$S) Van 2 129S, 1302). In O'Neal vMcAnich 115 S.Ct 992 (1995)the Court, per Justice Breyer, seems to have applied the Kotteakos test to errors of aconstitutional dimension. Dealing with the narrow situation in which the court cannot say withfair assurance that the error is harmless, but is in grave doubt regarding its harmlessness - that is,"in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise asto the harmlessness of the error" - then the majority stated that such an error should be treatedas if it were not harmless. It should also be noted that in Arizona v Fulminante 499 US 269(1990) Rehnquist CJ (dissenting) distinguished between what he referred to as "trial errors" and

"structural" errors. The former take place "during the presentation of the case to the jury, and ...may therefore be quantitatively assessed in the context of other evidence presented in order todetermine whether its admission was harmless beyond a reasonable doubt" (at 307-S). The latter,on the other hand, cannot be subjected to the harmless error test as the "entire conduct of the trialfrom beginning to end is obviously affected ... [and it follows that a trial of this kind] cannotreliably serve its function as a vehicle for determination of guilt or innocence, and no criminalpunishment may be regarded as fundamentally fair"(at 309-10 , citing Rose v Clark, 478 US 570,at 577-S).

JamaicaA case which debates the issue of how to deal with a constitutional irregularity or error isdemonstrated in the Privy Council decision of Robinson v Tlie Queen (163) (19S5) AC- an appealfrom the court of appeal of Jamaica. In this, case the court had to consider the effect of the


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16appellant's not being represented by counsel on the charge of murder. The first question that thecourt asked was whether the accused's constitutional rights had been violated, which question itanswered in the negative asserting that the right to legal represen tation was not abso lute (at 967 ).Having stated that there w as no violation of the accused's constitutional right the co urt then askedwhether there w as a m iscarriage of justice - in answering this question the test that seems to beapplied is whether the presence of a legal practitioner would have made any difference. This

question too was answered in the negative. The minority came to a different conclusion. In itsview there was a violation of the constitutional righ t which w as sufficient to allow the appeal andorder a new trial. On that view it would have been irrelevant to enquire whether or not theaccused had been prejudiced by the breach of the constitutional rig ht. T o quote from the m inorityjudgment at 974B-E:

"The effect of his [the trial judge's] decision to continue the trial without adjournmentafter the withdrawal of the defendant's counsel was to deny the defendant the option towhich the Co nstitution entitled him. Indeed, it is difficult to imagine a more serious turnof events for an accused facing a capital charge than to be abandoned mid-trial by his legaladvisers and to be denied by the court the opportunity of replacing them.It has been suggested, however, that the absence of legal representation would have m adeno difference to the outcome of the trial. In our view this is no answer to an infringementof constitutional right. We reject the suggestion, however, for a further reason also. A newtrial can be ordered under Jamaican law: and this is the cou rse w hich in our view shouldbe taken. But we must add that we do not accept that the result of the trial wouldnecessarily have been the same even if counsel had acted for the defendant. No one cantell what would have been the impact upon the jury of the alibi defence had the defendanthad the advantage of counsel's advise on evidence and conduct of the defence. Nor doesit follow from the lack of success of G ibson 's counsel in cross-examination that counselinstructed by the defendant would necessarily have failed to destroy the credibility of thewitness who implicated him as well as Gibson in the killing. We would, therefore, advisethat the appeal be allowed and a new trial ordered."

Australia


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17The Australian courts differentiate between irregularities that pe r se constitute a miscarriage ofjustice and irregularities that are less fundamental in nature and only result in a miscarriage ofjustice if it can be said that as a result of the irregularity the accused lost out on a real chance ofacquittal in that it cannot be said that in the absence of the irregularity a jury would inevitablyhave acquitted. This is illustrated by the case of Wilde v The Queen (198S) 164 CLR 365 FCwhere Brennan J stated the following at 372-3:

"However, it was submitted that the question whether a reasonable jury would inevitablyhave convicted does not arise where the error in the conduct of the trial is fundamental.In such a case, it was submitted, it does not matter what the strength of the prosecutioncase or the weakness of the defence case was. Reliance was placed upon what was saidby Gibbs J. in Ouartermaine v. The Queen (1980) 143 CLR 595 at 600 -601 ...'Ordinarily, when there has been a misdirection of law, the proviso to s 689[Criminal Code W.A.] will be applied if the Crown establishes that if there hadbeen no misdirection the jury would (or must) have come to the same conclusion.However, Wickham J., who delivered the judgment of the Court of CriminalAppeal in the present case, recognized that even if this were established 'theremight still be a substantial miscarriage of justice if the trial was so irregular thatno proper trial had taken place, in that "there had been a serious departure fromthe essential requirements of the law". The Court of Criminal Appeal was rightin taking that view of the law...'This view is undoubtedly correct...The proviso has no application where an irregularityhas occurred which is such a departure from the essential requirements of the law that itgoes to the root of the proceedings. If that has occurred, then it can be said, withoutconsidering the effect of the irregularity upon the jury's verdict, that the accused has nothad a proper trial and that there has been a substantial miscarriage of justice."

In the case of Dietrich v Ilic Queen (19 92) 177 CLR 292 FC the High Court of Australia inconsidering an appeal by a person who was convicted without being represented by counselexpressed similar views. Mason CJ and McHugh J describe the approach taken by the court w hendealing with an error of a non-fundamental nature. At para 29 they stated that the essential

question is whether there has been a miscarriage of justice in that the appellant lost a real chanceof acquittal as a result of the irregularity. Deane J summarises the Australian position in the


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following terms at para 17:18

"Statutory provisions which enable an appellate court to dismiss an otherwise successfulappeal by a convicted person, who maintains his innocence, on the ground that there wasno substantial m iscarriage o f just ice do not authorize an app ellate court to find that there'has b een no sub stantial miscarriage o f justice in a case w her e error, impropriety orunfairness has pervaded the trial and infected the verdict to an extent that the convictionwas not the outcome of a fair trial...Such statutory provisions providing for dismissal ofan appeal on the grou nd that there was no substantial m iscarriage of justic e extend onlyto cases where it can be seen either that any error, impropriety or unfairness did notprejudice the overall trial to an extent that it made it an unfair trial or that the residualeffect (i.e. viewed in the context of the overall trial) of any such error, impropriety orunfairness could not have relevantly infected the verdict in the sense that it could not haveadversely influenced the jury in reaching their verdict on the charge or charges upon whichthe accused was convicted and in respect of which the appeal to the appellate court isbrought."

The proper approachThere can be no doubt from these authorities that a non-constitutional irregularity committedduring a trial does not per se constitute sufficient justification to set aside a conviction on appeal.The nature of the irregularity and its effect on the result of the trial has to be examined.

Should the approach be different where the error arises from a constitutional breach? Thatquestion assumes that the breach of every constitutional right would have the same consequence.In my view that might be a mistaken assumption and much might depend on the nature of the rightin question. But even if it is assumed that the breach of ever)' constitutional right has the sameeffect on a conviction which is attacked on appeal, it does not follow that in all cases thatconsequence should be to set aside the conviction. I am not persuaded that there is justificationfor setting aside on appeal all convictions following upon a constitutional irregularity committedby a trial court.


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19It would appear to m e that the test that is proposed by cur co mm on la v is adequate in relationto both constitutional and non-constitutional errors. Where the irregularis is so fundamental thatit can be said that in effect there was no ri al a: all. the convic:icn should be se: aside. Where oneis dealing with an irregularity of a less severe nature then, depending or. the impact of theirreguiariry on the verdict, the conviction shouid either stand or be substituted with an acquittalon the merits. Essentially the question that one is asking in respect of constitutional and r.cn-consticutionai irregularities is whether the verdict has been tainted by such irregularity. Wherethis question is answered in the negative the verdict should stand. What one is doing isattempting to balance two equally compelling claims - the claim that society has that a guiltypersor. should be convicted, and the claim tha: the integrity cf the judicial process should beupheld. Where the irregularity is of a fundamental nature and whe re the irreguiariry. though iessfundamental, taints the conviction the latter interest prevails. Where however the irregularity issuch tha: i: is not of a fundamental nature and it does not tain: the verdict the former interestprevails. This does not detract from the cauncr. which a ccu n cf appeal w culd ordinarily adcpcin accepting the submissio n that a clearly established consucudcnai irregularity did no : prejudicethe accused in any way or tain: the conviction which followed thereupon.

Appliczrior. of :heproper approachApplying this approach to me instant case I can find nc justification to: interfering witr. theconviction of the second acc used in the court a quo. The oniy irreguiariry a: the trial relied on onbehalf cf the second accused was that a confession made by aim :c the magistrate was admittedin evidence by m e trial jud ge in terms of section 2 17(l)(b)(ii) cf A ct 51 of 1977. The effect of tha:szz-Aor. was to saddle the second accused with the onus of proving on a balance of probabilir.estha: his confession was not mace freely and voluntarily while he was in his sound and
http://probabilir.es/http://probabilir.es/


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20sober senses and without being unduly influenced thereto.

Circumstances are conceivable where such a confession is wrongly used to convict the accusedand there is debatable other evidence to support the conviction, and the court on appeal isnevertheless asked to uphold the conviction on the grounds that it is justified without having anyregard to the confession at all. In such cases the court might have to carefully analyse the evidencein order to determine whether it would be safe to uphold the conviction, and it might often bereluctant to come to that conclusion. These are not however the circumstances of the presentcase. The trial judge admitted the confession because he regarded himself as being bound by aprevious decision which upheld the constitutionality of section 217(l)(b)(ii) of Act 51 of 1977,but he was able to convict the second accused without any reliance on the confession at allbecause of other reliable evidence and because of objective facts which were common cause. Theconviction of the second accused could not therefore be said to be unfair. To set aside theconviction in these circumstances would not be to assert the importance of a constitutional rightat all: it would amount simply to a substitution of form for substance. There is in my view nojustification whatever for that result in this case.

SentenceIt was contended by counsel for the second accused that the court a quo erred infindingthat thesecond accused possessed the intention to kill the deceased in the form of dolus directus. Ratherit was submitted that the second accused's mens rea took the form of dolus eventualis.

Dolus directus can be described in the following way:


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21"This is intention in its ordinary grammatical sense: The accused meant to bring about theprohibited circumstance or the criminal consequence. This type of intention will be presentwhere the accused's aim and object was to bring about the unlawful circumstance or thecause the unlawful consequence ...even though the chance of its resulting was small."(Original emphasis deleted)(Burchell and Milton {supra) at 247)

Intention in the form of dolus eventualis on the other hand can be said to exist:

"...when the accused do es not mean to bring about the unlawful circumstance or to causethe unlawful consequence which follows from his or her conduct but foresees thepossibility of the circumstance existing or the consequence ensuing and neverthelessproceeds with his or her conduct." (Original emphasis deleted) (Burchell and Milton(supra) at 24S)

On the facts of this case I find it impossible to accept the submission that the second accused'smens rea took the form of dolus eventualis. The stabbing of the deceased was continuous andaimed at the most vulnerable parts of the body. As is stated by Strydom J in his judgment in thecourt a quo:

'"Dr Liebenberg who held the post mortem on the body of the deceased came to theconclusion that he died as the result of exsanguination from multiple incised andpenetrating woun ds. Of these wounds nos. 1, 5 and 16 were the most serious. Woundsno. 1 was a 20mm incised wounds on the right cheek. It went through the cheek into thetongue and was 30mm deep. It was serious because blood from this wound was aspiratedinto the air ways. Wound no. 5, a 20mm deep wound, caused a cut of 5mm into thejugular vein. W ound no. 16 was 30mm in length and cut throu gh the radial artery whichis serious because of the lot (sic) of blood caused by it. At least 14 of these wounds wereinflicted in the face, neck and upper body of the deceased. Some of the wounds, mainly


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22those in the hand o f the deceased, were described by the doctor as "defensive w ounds. Themultiplicity of these woun ds gives an indication that the deceased did not succumb withouta struggle and it further indicates that the person wielding the knife did not stop until thedeceased w as overpowered and all resistance overcome. The attack was a co ntinuous oneaimed at vulnerable parts of the upper body of the deceased executed with a dangerousweapon, or weapons, which caused serious and perilous injuries to the deceased."

Bearing in mind the vicious nature of the attack that resulted in the death of the deceased it cannotbe said that the second accused merely foresaw the possibility of death arising as a result of his

conduct and proceeded with such conduct reckless of that result. The objective factors clearlyindicate a state of mind that went beyond the foresight of death as a possible conseq uence of thestabbing. Indeed the infliction of 23 stab wounds, many of which were directed at the vulnerableregions of the deceased's body, patently supports the conclusion that it was the second accu sed 'sdirect aim and object to bring ab out the death of his victim.

It is trite law that the issue of sentencing is one which vests a discretion in the trial court. Anappeal court will only interfere w ith the exercise of this discretion where it is felt that the sentenceimposed is not a reasonable o ne, or whe re the discretion has not been judiciously exercised. T hecircumstances in which a court of appeal will interfere with the sentence imposed by the trial courtare where the trial court has misdirected itself on the facts or the law ( S v Rabie 1975 (4) SA 855(A)), or where the sentence that is imposed is one which is manifestly inappropriate, induces asense of shock {S v Snyders 19S2 (2) SA 694 (A)); or is such that a patent disparity existsbetween the sentence that was imposed and the sentence that the court of appeal would haveimposed (S w-WT 1975 (3) SA 214 {\),SvHlapezida and Others 1965 (4) SA 439 (A); S v Vanllyk 1992(1) SACR 147(NmS)at 165d-g; S v De Jager and Another 1965 (2) SA 616 (A) at629A-B; Rex v Zulu and Others 1951 (I ) SA 4S9 (N) at 497C -D, 5 v Bolus and Another 1966(4) SA 575 (A) at 5SIE -H; S v Petkar 19SS (3) SA 571 (A) at 574 C); or w here there is an over-


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^

emphasis of the gravity of the particular crime and an under-emphasis of Lie accused's personalcircumstances (S v Mcseko 19S2 (1) 99 (AD) a: 102; 5 v Colles 1990 (1) CR ac 465).

On the facts of this case and in accordance with the abovementioned principles resuiatins thereplacement of a sentence issued by the court c quo I perceive no grounds for interfering witha s sentence imposed by Strydom J?.

OrderIn Lhe rssuit the 30Deai of the second accused against his convictions and sentence is dismissed.

I Mahomed CJ

I agree:

I agree:

E Dumbutshena AJA


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- 24 -ON BEHALF OF THE FIRST APPELLANT: ADV. H. GEIERInstructed by: LEGAL AID

ON BEHALF OF THE FIRST RESPONDENT: ADV. D.F. SMALLInstructed by: Prosecutor-General

immanuel shikunga versus the state

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